BILL NUMBER: SB 46 INTRODUCED
BILL TEXT
INTRODUCED BY Senators Alquist, Florez, Maldonado, and Pavley
JANUARY 7, 2009
An act to amend Sections 799 and 803 of the Penal Code, relating
to statutes of limitation.
LEGISLATIVE COUNSEL'S DIGEST
SB 46, as introduced, Alquist. Sex offenders: commencing trial:
time.
Existing law provides that the prosecution of an offense
punishable by death or by imprisonment in the state prison for life
or for life without the possibility of parole, or for the
embezzlement of public money, may be commenced at any time.
This bill would add specified sex offenses, including rape,
sodomy, lewd or lascivious acts, oral copulation, continuous sexual
abuse of a child, forcible acts of sexual penetration, and flight of
a sex offender to avoid prosecution, to the list of crimes for which
there is no statute of limitation for prosecution. The bill would
make conforming changes to related provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 799 of the Penal Code is amended to read:
799. (a) Prosecution for an offense
punishable by death or by imprisonment in the state prison for life
or for life without the possibility of parole, or for the
embezzlement of public money, any of the following
may be commenced at any time . :
(1) Offenses punishable by death.
(2) Offenses punishable by imprisonment in the state prison for
life.
(3) Offenses punishable by imprisonment in the state prison for
life without possibility of parole.
(4) Offenses relating to the embezzlement of public money.
(5) Offenses described in Section 261, 286, 288, 288a, 288.5, 289,
or 289.5.
This
(b) This section shall apply in
any case in which the defendant was a minor at the time of the
commission of the offense and the prosecuting attorney could have
petitioned the court for a fitness hearing pursuant to Section 707 of
the Welfare and Institutions Code.
SEC. 2. Section 803 of the Penal Code is amended to read:
803. (a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the same person for the
same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.
(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in this
subdivision. This subdivision applies to an offense punishable by
imprisonment in the state prison, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or dependent adult, or
the basis of which is misconduct in office by a public officer,
employee, or appointee, including, but not limited to, the following
offenses:
(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.
(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.
(3) A violation of Section 25540, of any type, or Section 25541 of
the Corporations Code.
(4) A violation of Section 1090 or 27443 of the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud in violation of Section
11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of Section 548 or 550 of
this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.
(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.
(8) A violation of Section 22430 of the Business and Professions
Code.
(9) A violation of Section 10690 of the Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of subdivision (d) or (e) of Section 368.
(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the
defendant is not within the state shall be a part of those
limitations.
(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could have
reasonably been discovered, with regard to offenses under Division 7
(commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with
Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of,
Division 20 of, or Part 4 (commencing with Section 41500) of
Division 26 of, the Health and Safety Code, or under Section 386, or
offenses under Chapter 5 (commencing with Section 2000) of Division 2
of, Chapter 9 (commencing with Section 4000) of Division 2 of,
Section 6126 of, Chapter 10 (commencing with Section 7301) of
Division 3 of, or Chapter 19.5 (commencing with Section 22440) of
Division 8 of, the Business and Professions Code.
(f) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under the age of 18
years, was the victim of a crime described in Section 261, 286, 288,
288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of
the Statutes of 1991 relating to penetration by an unknown object.
(2) This subdivision applies only if all of the following occur:
(A) The limitation period specified in Section 800, 801, or 801.1,
whichever is later, has expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual.
(C) There is independent evidence that corroborates the victim's
allegation. If the victim was 21 years of age or older at the time of
the report, the independent evidence shall clearly and convincingly
corroborate the victim's allegation.
(3) No evidence may be used to corroborate the victim's allegation
that otherwise would be inadmissible during trial. Independent
evidence does not include the opinions of mental health
professionals.
(4) (A) In a criminal investigation involving any of the crimes
listed in paragraph (1) committed against a child, when the
applicable limitations period has not expired, that period shall be
tolled from the time a party initiates litigation challenging a grand
jury subpoena until the end of the litigation, including any
associated writ or appellate proceeding, or until the final
disclosure of evidence to the investigating or prosecuting agency, if
that disclosure is ordered pursuant to the subpoena after the
litigation.
(B) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.
(C) This subdivision shall not apply where a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.
(g)
(f) (1) Notwithstanding any other limitation of time
described in this chapter, a criminal complaint may be filed within
one year of the date on which the identity of the suspect is
conclusively established by DNA testing, if both of the following
conditions are met:
(A) The crime is one that is described in subdivision (c) of
Section 290.
(B) The offense was committed prior to January 1, 2001, and
biological evidence collected in connection with the offense is
analyzed for DNA type no later than January 1, 2004, or the offense
was committed on or after January 1, 2001, and biological evidence
collected in connection with the offense is analyzed for DNA type no
later than two years from the date of the offense.
(2) For purposes of this section, "DNA" means deoxyribonucleic
acid.
(h)
(g) For any crime, the proof of which depends
substantially upon evidence that was seized under a warrant, but
which is unavailable to the prosecuting authority under the
procedures described in People v. Superior Court (Laff) (2001) 25
Cal.4th 703, People v. Superior Court (Bauman & Rose) (1995) 37
Cal.App.4th 1757, or subdivision (c) of Section 1524, relating to
claims of evidentiary privilege or attorney work product, the
limitation of time prescribed in this chapter shall be tolled from
the time of the seizure until final disclosure of the evidence to the
prosecuting authority. Nothing in this section otherwise affects the
definition or applicability of any evidentiary privilege or attorney
work product.